Karnataka High Court
Lankaiah vs State Of Karnataka on 27 November, 2023
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NC: 2023:KHC:42788
CRL.RP No. 476 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO.476 OF 2016
BETWEEN:
LANKAIAH
S/O. NINGAIAH,
AGED ABOUT 35 YEARS,
R/O. MATHIKERE VILLAGE,
AMBLE HOBLI,
CHIKKAMAGALURU TALUK,
CHIKKAMAGALURU PIN:571301. ... PETITIONER
(BY MR. SACHIN B.S., ADVOCATE)
AND:
STATE OF KARNATAKA
REPRESENTED BY
CHIKMAGALORE RURAL P.S.
REPRESENTED BY S.P.P.,
HIGH COURT OF KARNATAKA,
Digitally BANGALORE - 560001. ... RESPONDENT
signed by
SUMITHRA R
(BY MRS. ANITHA GIRISH N., HCGP)
Location:
HIGH THIS CRIMINAL REVISION PETITION IS FILED UNDER
COURT OF SECTION 397 R/W 401 CR.P.C. PRAYING TO SET ASIDE THE
KARNATAKA JUDGMENT AND ORDER DATED 06.06.2014 IN C.C.NO.831/2011 ON
THE FILE OF THE I ADDL. SR. CIVIL JUDGE AND JMFC,
CHIKKAMAGALURU AND ALSO THE CONFIRMING IMPUGNED
JUDGMENT AND ORDER DATED 27.01.2016 IN CRL.A.NO.78/2014
ON THE FILE OF COURT OF THE PRINCIPAL SESSIONS JUDGE,
CHIKKAMAGALURU, CONSEQUENTLY ALLOW THE CRL.RP.
THIS PETITION COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
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ORDER
Revision Petitioner/accused feeling aggrieved by the judgment of First Appellate Court on the file of Prl.Sessions Judge at Chikkamagaluru in CrlA.No.78/2014, dated 27.01.2016 confirming the judgment of Trial Court on the file of I Addl.Senior Civil Judge and JMFC, Chikkamagaluru in C.C.No.831/2011, dated 06.06.2014 preferred this revision petition.
2. Parties to the Revision Petition are referred with their ranks as assigned in the Trial Court for the sake of convenience.
3. Heard the arguments of both sides.
4. After hearing the arguments of both sides and on perusal of Trial Court records including with the judgment of both the Courts below the following points arise for consideration:
1) Whether the impugned judgment of First Appellate Court under revision in confirming the judgment of Trial Court in convicting the -3- NC: 2023:KHC:42788 CRL.RP No. 476 of 2016 accused for the offence punishable under Section 326 of IPC is perverse capricious and legally not sustainable?
2) Whether interference of this Court is required?
5. On careful perusal of oral and documentary evidence placed on record by the prosecution, it would go to show that on 12.02.2009 at 7 p.m. in Mathikere village of Chickamagaluru, in front of the house of complainant PW.3 Mallaiah, accused has abused the complainant in filthy language on questioning as to why he has filed the complaint against him. Thereafter, the accused by means of sickle (referred as chopper by both the Courts) assaulted on the left side of the head, both the legs, left hand joint and right forearm and broken the teeth, due to which complainant suffered bleeding injuries. On these allegations made in the complaint, the Investigating Officer after completing investigation filed the charge sheet against the accused.
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6. The prosecution to prove the charges levelled against accused relied on the oral testimony of PWs.1 to 9 and documents were marked at Exs.P.1 to P.7 so also got identified MOs.1 to 5. The Trial Court after appreciation of evidence on record, convicted the accused for the offence punishable under Section 326 of Indian Penal Code, 1860( herein after for brevity referred to as "The IPC") and acquitted for the offence punishable under Sections 504 and 506 of IPC. Accused challenged the judgment of said conviction before the First Appellate Court and the First Appellate Court after re-appreciation of the evidence dismissed the appeal.
7. Learned counsel for the accused has argued that the evidence of injured PW.3 Mallaiah and that of his wife PW.4 Geetha cannot be relied in view of the fact that independent eye witnesses PW.1 Rajegowda, and PW.5 Girish have not supported the case of prosecution. The evidence of PW.6 Dr.C.K.Padmavathi is contrary to the oral testimony of injured PW.3 Mallaiah. The prosecution -5- NC: 2023:KHC:42788 CRL.RP No. 476 of 2016 out of the material evidence placed on record has failed to establish that injured/complainant PW.3 Mallaiah has suffered injury due to assault by means of sickle and there is no evidence on record to prove that those injuries are grievous in nature. Therefore, the Courts below were not justified in convicting the accused for the offence punishable under Section 326 of IPC.
8. Per contra, the learned High Court Government Pleader has argued that oral testimony of injured PW.3 Mallaiah is duly supported by medical evidence of PW.6 Dr.C.K.Padmavathi and the wound certificate Ex.P.6 speaks to the effect that out of them 6 injuries suffered by injured PW.3 Mallaiah. Injury Nos.1 and 6 are opined to be grievous in nature and remaining injuries are simple in nature. The said evidence is duly corroborated by the evidence of PW.7 N.R.Krishnamurthi who has registered the case Ex.P.7 on the basis of above complaint Ex.P.3. PW.8 Ramachandra Naik has carried out the investigation and filed the charge sheet. The Courts below have rightly -6- NC: 2023:KHC:42788 CRL.RP No. 476 of 2016 appreciated the evidence on record and justified in convicting the accused for the offence punishable under Section 326 of IPC and the same does not call for any interference by this Court.
9. On careful perusal of the evidence of PW.3 Mallaiah injured complainant in this case, it would go to show that on 12.02.2009 at 7 p.m. while he was proceeding with ox to tie them in cattle shed, at that time accused on account of previous enmity and complainant is filing complaint by means of sickle assaulted over his left and back portion of his head, neck, left hand, lips, over chest and right shoulder, due to which he suffered bleeding injuries. At that time CW.4 Rajegowda and CW.5 Girish came to the spot on hearing the hue and cry of his wife Geetha, then shifted injured/complainant to the hospital. It is about 10 p.m. Police visited to the said hospital before whom he has filed oral complaint which was reduced in writing Ex.P.7 and identified his signature Ex.P.3(a).
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10. PW.4 Geetha is the wife of injured PW.3 Mallaiah and she has deposed to the effect that she was in the house on 12.02.2009 at 7 p.m., accused on account of previous enmity came with sickle and assaulted on her husband over neck, mouth, back, left hand finger and right hand shoulder. On hearing the hue and cry of her husband she immediately came to the spot. Further CW.3 Rajegowda, CW.5 Girish also came to the spot, then on seeing her injured husband PW.3 Mallaiah they shifted him to the hospital and she identifies MO.1 sickle used by accused for assaulting complainant. The two independent witnesses PW.1 Rajegowda and PW.5 Girish have not supported the case of prosecution. The place of incident infront of the house of complainant and the accused was residing infront of the house of complainant is not seriously disputed by the defence.
11. The place of incident is infront of the house of the complainant which is evident from the spot panchanama Ex.P.2 which was shown by PW.4 Geetha. PW.2 -8- NC: 2023:KHC:42788 CRL.RP No. 476 of 2016 Dharmegowda is the panch witness to the spot panchanama Ex.P.2 and has spoken about the Police having prepared the panchanama in his presence Ex.P.2 and he signed on the panchanama Ex.P.2(a), so also he identifies MO.1, the blood stains were also found at the place of incident. PW.8 Ramachandra Naik has spoken about preparation of panchanama of the place of incident shown by PW.4 Geetha in presence of PW.2 and CW.6 Javaraiah and seized sickle MO.1. The defence though has cross-examined PW.2 Dharmegowda and PW.8 Ramachandra Naik, nothing worth material has been brought on record to discredit their evidence regarding the preparation of the spot panchanama Ex.P.2 and the recovery of MO.1. Thus, by the said evidence on record, prosecution has proved the place of incident and the recovery of MO.1.
12. The evidence of PW.6 Dr.C.K.Padmavathi, would go to show that on 12.02.2009, injured PW.3 Mallaiah was brought by his brother Thimmaiah with the history of -9- NC: 2023:KHC:42788 CRL.RP No. 476 of 2016 assault by accused and examining the injured at 8 p.m on examination of the injured PW.3 Mallaiah found the following injuries:
1) Cut lacerated wound on the left
parietal bone.
2) Cut lacerated wound over left
forearm.
3) Cut lacerated wound over left side of the neck.
4) Cut lacerated wound over left angle of mouth.
5) Cut lacerated wound over the base of right ring finger.
6) As per the C.T scan report there was a fracture of left parietal bone with haemorrhagic contusion in right superior parietal lobe and as per the Dentist opinion, there was fracture
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of left lower central incisor and
canine.
PW.6 Dr.C.K.Padmavathi is of the opinion that injury Nos.1 and 6 are grievous in nature and injury Nos.2 and 5 are simple in nature.
13. Looking to the time of incident that took place at 7 p.m. on 12.02.2009 and injured PW.3 Mallaiah is being examined by PW.6 Dr.C.K.Padmavathi on 12.02.2009 at 8 p.m., coupled with the evidence of injured PW.3 Mallaiah, it would go to show that PW.3 Mallaiah suffered with the injuries in the incident as claimed by the prosecution due to the assault of accused by means of sickle, as noted in the wound certificate Ex.P.6. The defence has not elicited any material evidence on record in the cross-examination of PW.3 Mallaiah and PW.4 Geetha that there was any other possibility of PW.3 Mallaiah suffering injury than in the incident claimed by the prosecution. There is absolutely no any valid reason to disbelieve the evidence of PW.3 Mallaiah injured witness of
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NC: 2023:KHC:42788 CRL.RP No. 476 of 2016 this case and his wife PW.4 Geetha, so also PW.6 Dr.C.K.Padmavathi. The question is as to whether the offence punishable under Section 326 of IPC is attracted. In view of the nature of injuries suffered by PW.3 Mallaiah. The prosecution to prove the offence punishable under Section 326 of IPC must necessarily prove.
1) Voluntarily causing hurt.
2) Hurt caused must be grievous hurt.
3) The grievous hurt have been caused by dangerous weapons or means.
14. The grievous hurt must be covered under any of the categories falling in terms of Section 320 of IPC. In the present case the prosecution claims that, since injury Nos.1 and 6 shown in wound certificate Ex.P.6 are opined to be grievous in nature and same falls within the category of Sl.No.7 of Section 320 of IPC, that fracture or dislocation of the bone or tooth. The learned High Court Government Pleader in support of her contention relied on
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NC: 2023:KHC:42788 CRL.RP No. 476 of 2016 the judgment of Hon'ble Apex Court in Prabhu Vs. State of Madhya Pradesh in Crl.A.No.1956/2008, in the said case before the Hon'ble Apex Court the deceased has suffered 14 external injuries and injury Nos.13 and 14 were incised wounds falling within the category of Section 320 of IPC has confirmed the judgment of Hon'ble Madhya Pradesh High Court in confirming the judgment of Trial Court for the offence punishable under Section 326 of IPC. Learned High Court Government Pleader also further relies on the judgment of Hon'ble Apex Court in Bhagwan Narayan Gaikwad Vs. The State Of Maharashtra And Others in Crl.A.No.1039/2021 in the said case before the Hon'ble Apex Court, it was found that there was a pre- mediated attempt of the appellant, he assaulted the victim with sword and chopped of his right leg below the knee and right forearm below the elbow and brutality is apparent on the face of record the injured victim has been crippled for life and pursuing his daily chores with prosthetic arm and leg and has lost vital organs of the body and become permanently disabled. Under these
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NC: 2023:KHC:42788 CRL.RP No. 476 of 2016 circumstances it was held that the offence punishable under Section 326 is made out. The learned High Court Government Pleader lastly relied on another judgment of First Appellate Court in Omanakkuttan and others Vs. State of Kerala in Crl.A.No.800/2020, wherein only the appeal was admitted for hearing on the quantum of sentence not on merits of the case. The Hon'ble Apex Court after hearing both sides and in view of the facts of the said case has modified the sentence for the offence punishable under Section 326 of IPC.
15. In the present case the opinion of PW.6 Dr.C.K.Padmavathi that injury Nos.1 and 6 shown in the wound certificate Ex.P.6 are grievous in nature is based on the CT scan report and also the dentist opinion. The prosecution has not produced any CT scan report of Pooja Health Centre showing that left parietal bone was having fracture. The opinion of Dentist is also not placed on record. The prosecution has also not examined the respective doctor who has taken X-ray and given opinion
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NC: 2023:KHC:42788 CRL.RP No. 476 of 2016 nor the CT scan report or the dentist opinion is produced and marked in this case. In this context of the matter it is profitable to refer the judgment of Hon'ble Kerala High Court in P.Johnson and others Vs. State of Kerala, reported in 1998 Criminal Law Journal 3651, wherein it has been observed and held that:
" Even regarding the conviction brought under Section 326, there is no legal evidence to fix the criminal liability. Section 320, I.P.C. defines grievous hurt. Fracture comes under this Section. PW-7 doctor who examined PW-12 in the medical college hospital, Calicut issued Ext.P-6 discharge certificate which goes to show that PW-12 sustained grievous hurt. PW-7 in this context would depose that he gave Ext.P-6 certificate on the basis of X-ray report and that report was not produced and the doctor who took X-ray was not examined. Non- production of the X-ray report and non examination of the doctor who took the X-ray are sufficient to deduce that the criminal liability either under Section 325 or 326, I.P.C.
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NC: 2023:KHC:42788 CRL.RP No. 476 of 2016 is not established. This flaw is also a stronger one shaking the case of the prosecution".
It is also profitable to refer the Division Bench Judgment of this Court in State of Karnataka Vs. Sheenappa Gowda and others reported in 2011(4) in KCCR 2759, wherein it has been observed and held as under:
" It is now well settled that unless the prosecution produces the X-ray for confirmation of fracture opined by the Doctor on medical examination clinically, it cannot be said that the accused have caused grievous injury of fracture. It is true that in the cross-examination of PW.1, the learned counsel appearing for the accused has not disputed the nature of injuries spoken to by PW.1. However, the same would not dispense with the production of the X-ray by the prosecution to prove beyond reasonable doubt that the injured had sustained fracture of middle phalanx, which is an opinion given by PW.1 - Doctor only on clinical examination of PW.4, the injured". (emphasis supplied by me).
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NC: 2023:KHC:42788 CRL.RP No. 476 of 2016 In view of the principles enunciated in both the aforementioned judgments, in the absence of X-ray report or the Doctor who has given opinion has not been examined cannot be held for the offence punishable under Section 326 of IPC is made out. In the aforesaid Division Bench judgment of this Court referred (supra) when the injuries suffered by PW.3 Mallaiah is proved by the evidence on record by virtue of PW.3 Mallaiah and PW.6 Dr.C.K.Padmavathi the same would follow within the ambit of 324 of IPC.
16. The Courts below without taking into consideration the proof of nature of grievous injury and the hurt falling within the ambit of 320 of IPC only on the basis of evidence of PW.6 Dr.C.K.Padmavathi proceeded to hold that the prosecution has proved the offence punishable under Section 326 of IPC. In fact PW.6 Dr.C.K.Padmavathi opinion of injury Nos.1 and 6 is based on the CT scan report and the dentist opinion. However, that basic documents has not been produced by the
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NC: 2023:KHC:42788 CRL.RP No. 476 of 2016 prosecution. Therefore, the findings of the Trial Court holding that the accused has committed the offence punishable under Section 326 of IPC which is confirmed by the First Appellate Court cannot be legally sustained. On the contrary the evidence as referred above falls within ambit of 324 of IPC.
17. The offence punishable under Section 324 of IPC empower the Courts to impose punishment which may extend to three years or with fine or with both, therefore the Courts will have to exercise its judicial discretion in imposing the punishment for the proved offence looking to the facts and circumstances of the case. In the present case the incident in question has occurred due to accused questioning injured PW.3 Mallaiah of filling complaint. Looking to the nature of evidence produced by the prosecution in the form of evidence of injured PW.3 Mallaiah and that of medical officer Dr.C.K.Padmavathi and the other attending circumstances, if accused is sentenced to undergo simple imprisonment for 3 months and to pay
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NC: 2023:KHC:42788 CRL.RP No. 476 of 2016 a fine of Rs.2,000/- and in default of payment of fine accused to undergo simple imprisonment for 3 months with the compensation awarded by the Trial Court, which is confirmed by the First Appellate Court is maintained, then it will meet the ends of justice. Consequently, proceed to pass the following:
ORDER The Revision Petition filed by the Revision Petitioner/accused is hereby partly allowed.
The judgment of the First Appellate Court on the file of Prl.Sessions judge, Chickamagaluru in Crl.A.No.78/2014, dated 27.01.2016 in confirming the judgment of Trial Court on the file of I Addl.Senior Civil Judge and JMFC Chickamagaluru in C.C.No.831/2011, dated 06.06.2014 is ordered to be modified as under:
Accused is convicted for the offence punishable under Section 324 of IPC and sentenced to undergo simple imprisonment for 3 months and pay a fine of Rs.2,000/- in default of payment of fine shall undergo simple
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NC: 2023:KHC:42788 CRL.RP No. 476 of 2016 imprisonment for 3 months for the offence punishable under Section 324 of IPC.
Compensation awarded by the Trial Court to the injured PW.3 Mallaiah which is confirmed by the First Appellate Court is maintained.
The accused is acquitted for the offence punishable under Section 326 of IPC.
The bail bond of the accused and that of his surety stands discharged.
Accused is entitled for the benefit of set-off under Section 428 of Cr.P.C. for the period having undergone by him in judicial custody, if any, in the matter.
Registry to send back the records to Trial Court with a copy of this order.
SD/-
JUDGE GSR